Exhibit 10.11
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THIS
SERVICES AGREEMENT (this “Agreement”) is entered on March 7 2007, with an effect
as of January 1, 2006 (this “Effective Date”) by and between Acro Inc., a Nevada
corporation (“Acro”) and Acrosec Ltd., a company organized under the laws of
Israel and having a principal place of business in Israel (“Acrosec”). |
R E C I T A L S:
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A. |
Acro
is the owner of, and has the full legal right to develop and commercially
exploit, certain Technology (as hereinafter defined); and |
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B. |
Acro
retained Acrosec since the Effective Date, to provide certain research and
development, manufacturing, and management services and since the
Effective Date, Acrosec has been providing such services to Acro, each on
the terms and conditions described herein; and |
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C. |
Based
on level of activity that will be conducted by both companies and the
level of internal resources that will be used by Acrosec to service Acro,
management will decide on the appropriate timing for conducting a transfer
pricing study to support the cost plus arrangement. |
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Accordingly,
in consideration of the premises and the mutual covenants contained in this Agreement, the
parties agree as follows: |
1.
DEFINITIONS
The
following terms used in this Agreement shall have the meaning indicated below:
| “Management
Services” means management services, including, without limitation, managerial
services similar to that provided by chief executive officer, chief financial officer, and
other executive officers, as agreed between the parties from time to time, relating to the
operational and management of Acro.
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| “Manufacturing
Services” means manufacturing services for the manufacturing and assembling all
or part of Acro’s products, as agreed between the parties from time to time.
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| “Marketing
Services” means coordination of marketing activities, devise a marketing strategy
and develop and implement, a marketing program for, and coordinate the sale of,
Acro’s products.
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| “Patents”
means all patents and patent applications derived from, or in any way related to, claiming
or arising out of the Technology, including all divisions, continuations,
continuations-in-part, confirmations, registrations, reissues, renewals and extensions
thereof, that are filed or issued in any country of the world, owned by, licensed to or
to-be owned by Acro.
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| “R&D
Services” means research and development services, including, without limitation,
development and design, and any and all other services incident thereto or otherwise
undertaken at the request of Acro relating to the Technology.
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| “Services”
means any of R&D Services, Marketing Services, Manufacturing Services, or Management
Services.
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| “Technology”
means all know how, intellectual property, inventions (whether or not patentable),
discoveries, processes, machines, manufactures, compositions of matter, improvements,
techniques, methods, ideas, concepts, procedures, formulas, designs, technical data,
product development data, software code, technology, secret processes, trade secrets, and
any other rights or interests thereon, including latter improvements thereon, relating to
a method of detecting a peroxide-based explosive in a sample suspected of consisting of or
comprising such explosive, which method comprises dissolving said sample in a suitable
organic solvent, contacting the solution with an aqueous solution of a strong acid capable of decomposing said explosive to release hydrogen
peroxide, and contacting the resulting mixture with a peroxidase enzyme. |
2.
GRANT OF LICENSE
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Subject
to the terms of this Agreement, effective as of the Effective Date, Acro grants to
Acrosec, and Acrosec accepts from Acro, a non-exclusive license to use the Technology
solely, and only to the extent necessary, to conduct the Services. |
3.
MUTUAL OBLIGATIONS
3.1 Acrosec
will continue to conduct the Services, as applicable, as Acro may direct during the term
of this Agreement, and as set forth in Exhibit A, which may be amended from time to time.
3.2 Acrosec
shall notify Acro periodically of the then current status (including progress and
problems, if any), and schedule for completion, of the Services. Acrosec shall provide
Acro promptly with all relevant information regarding any new Technology arising out of
Acrosec’s performance of the Services.
3.3 Acrosec
shall be entitled to reimbursement equal to the costs, expenses and liabilities incurred
by Acrosec in providing the Services to Acro, including, without limitation (i) costs of
base salaries and benefits to the employees of Acrosec who perform the Services (ii)
costs in obtaining supplies to be used in conducting the Services, (iii) costs of
retaining third party consultants or other independent contractors (“Third Party
Costs”), and (iv) an allocable share of all expenditures for management,
administration, overhead and other similar services, such allocation to be made in a
reasonable and fair manner based on relative usage of such Services by Acrosec for the
benefit of Acro (collectively, the “Allocable Costs”).
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Acro
shall reimburse and pay to Acrosec, from time to time, (a) with respect to R&D
Services, during the first calendar year beginning from the Effective Date, Allocable
Costs of the R&D Services plus 7% of such amount (excluding Third Party Costs), and
thereafter, Allocable Costs of the R&D Services plus 10% of such amount (excluding
Third Party Costs), (b) with respect to Manufacturing Services, during the first calendar
year beginning from the Effective Date, Allocable Costs of the Manufacturing Services plus
7% of such amount, and thereafter, Allocable Costs of the Manufacturing Services plus 10%
of such amount (excluding Third Party Costs), (c) with respect to Marketing Services,
Allocable Costs of the Marketing Services plus commission on revenues generated from
Acro’s products, to be determined by the parties, and (d) with respect to Management
Services, such payment to be determined and made in advance or in arrears as the parties
may determine. |
3.4 All
payments shall be made in U.S. Dollars, 30 days after receipt of invoice by bank transfer
to a bank account designated by Acrosec.
3.5 In all
events, Acrosec shall present to Acro an invoice setting forth in a reasonable detail the
calculation of Allocable Costs in connection with their performance of the Services. VAT,
if applicable, will be added to every payment.
4.
CONFIDENTIAL INFORMATION
Duringthe term of this Agreement,
and for a period of ten (10) years thereafter, Acrosec shall keep strictly confidential,
and not disclose to others or use for any purpose other than as expressly authorized herein, any confidential
information supplied by Acro or its employees or representatives (“Confidential
Information”). Acrosec shall take reasonable steps to ensure that its employees and
agents maintain the secrecy of Confidential Information, and shall comply with the
confidentiality and non use provisions of this Article. The obligation of confidentiality
shall not apply to the extent that disclosure is required by law or was disclosed with
Acro’s prior consent.
5. PATENT
APPLICATIONS AND OTHER FILINGS
5.1 The
parties agree that, as between Acrosec and Acro, any Patents, copyrights, trade secrets
and other proprietary rights with respect to the Technology, whether registered in Acrosec’s
name or in the name of one or more of its employees, shall be the sole and exclusive
property of Acro.
5.2 Acrosec
undertakes that it will execute such forms of assignment or quit claims with respect to
the Patents, copyrights, trade secrets and other proprietary rights relating to the
Technology, to Acro or its
assigns without any further compensation, and will cause its employees and contractors to
execute such forms of assign or quit claims with respect to the Patents, copyrights, trade
secrets and other proprietary rights with respect to the Technology, without any further
compensation whenever required to do so by Acro or its assigns.
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5.3 Acrosec
undertakes that it and its employees will sign any further documents and take such
further action as may be necessary or desirable for the purpose of confirming or
otherwise evidencing title, free and clear of any liens, claims or encumbrances, in and
to the Technology in the name of Acro.
6.
TERM AND TERMINATION
6.1 Unless
earlier terminated by Acro with thirty (30) days prior notice to Acrosec, this Agreement
shall continue for an initial term (the “Initial Term”) of two (2) years
following the effective date of this Agreement. Following the Initial Term, this
Agreement shall continue in effect upon the same terms and conditions for one or more
additional one-year periods (each a “Renewal Period”) unless, at least thirty
(30) days prior to the end of the Initial Term, or any successive Renewal Period, either
party provides the other with written notice of its intent not to renew this Agreement.
6.2 If
either party defaults in the performance or observance of any of the material provisions
of this Agreement, and such default is not cured within ninety (90) days after delivery
of notice by the other party specifying such default, the non-defaulting party shall have
the right to terminate this Agreement, by notice to the defaulting party to such effect.
6.3 Except
as otherwise provided in this Agreement, upon the expiration or other termination of this
Agreement:
6.3.1 All
privileges and licenses held by Acrosec respecting the Technology and the activities
covered by this Agreement, including without limitation, Patents, copyrights, trade
secrets and other proprietary rights with respect to the Technology, shall terminate and
revert to Acro.Acrosec shall deliver to Acro all Technology and other information
regarding the Technology, Patents, copyrights, trade secrets and other proprietary rights
with respect to the Technology.
6.3.2 Acrosec
shall execute whatever documents and take whatever steps are necessary to ensure that
Acro or its assigns receive all of the rights, title and interest in and to any
Technology, Services, Patents, copyrights, trade secrets and other proprietary rights
with respect to the Technology, free and clear of all liens, claims and encumbrances.
7.
MISCELLANEOUS
7.1 Governing
Law. This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Israel without reference to principles and laws relating to the conflict
of laws.
7.2 Notices.
Any notice, consent or approval permitted or required under this Agreement shall be in
writing sent by facsimile, overnight courier or registered mail, and shall be addressed
to the addresses specified above or to any other address of which either party shall
advise the other in writing. Notices sent by facsimile shall be deemed to have been
received in the country of the recipient one business day after being transmitted.
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7.3 Entire
Agreement. This Agreement sets forth the entire agreement and understanding between
the parties and supersedes all previous agreements, representations and understandings,
whether written or oral, between the parties with respect to the subject matter hereof.
7.4 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and permitted assigns.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered on and as of the date hereof. |
Acro Inc.
By: 
Name: GADI ANER
Title: CEO & Chairman
Acrosec Ltd.
By: 
Name: Xxxxx Xxx-Xxxxxx
Title: CFO
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Exhibit A
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Management
services, including, without limitation to the following services: |
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2. |
Daily
general management |
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Manufacturing
services, including, without limitation to the following services: |
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2. |
Assembling
of products |
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Marketing
services, including without limitation to the following services: |
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2. |
Campaigns
and advertising |
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3. |
Investor
relationships |
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4. |
Business
development activities |
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6. |
Website
design and maintenance |
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1. |
Requirements
analysis, architecture and design of the core product |
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2. |
Development
of the core product |
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3. |
Maintenance
of the core technology |
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4. |
Working
with partners to plan, implement and validate our technology and products |
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